Smith v. Zoning Bd. of Review of City of Warwick

• Decision Date: 25 January 1968
• Docket Number: No. 104-M,104-M
• Citation: 237 A.2d 551,103 R.I. 328
• Parties: William J. SMITH et al. v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK. P.
• Court: Rhode Island Supreme Court

Page 551

237 A.2d 551

103 R.I. 328

William J. SMITH et al. v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK.

No. 104-M.P.

Supreme Court of Rhode Island.

Jan. 25, 1968.

Roberts & McMahon, William F. McMahon, Providence, for petitioners.

Howard R. Haronian, City Sol., Gordon C. Mulligan, Asst. City Sol., Warwick, for respondent.

OPINION

PAOLINO, Justice.

The petitioners filed an application with the zoning board of review of the city of Warwick seeking a special exception under sections 14.2.3 and 6.2 of the Warwick zoning ordinance for permission to construct a gasoline service station on a parcel of land owned by them and located in a general business zone. After a hearing, at which witnesses for and against the application testified, the board filed a written decision denying the application. The petitioners thereupon brought this petition for certiorari to review the board's action, and pursuant to the writ the pertinent records have been certified to this Court.

Insofar as relevant here the facts are as follows. The petitioners' land is located at 2076 Warwick avenue, at the northeasterly corner of Warwick and Church avenues. It has a frontage of 210 feet on Warwick avenue, a depth of approximately 188 feet and an area of 32,732 square feet. The area in which the land is located is zoned general business for a depth of 150 feet from Warwick avenue, but a small triangular piece at the rear of petitioners' land is in a residence district designated as Residence A 10, which abuts the 150-foot depth of the general business zone. According to the testimony, petitioners were not asking permission to use any part of the land in the Residence A 10 district for the proposed use. The application specifies that the proposed structure would be entirely within the general business zone. The property is not devoted to any of the premitted commercial uses; it contains only a one-family dwelling, which would be razed if the proposed use were granted.

Warwick avenue is a local but main artery, leading north and south. The 150-foot depth of general business zone abuts a residential zone to the east and west, where the residential development is fairly dense. The typical development on Warwick avenue is roadside business and residential development, the latter thereon being relatively old. Across Warwick avenue, diagonally to the north from petitioners' premises, is a gasoline service station, and within a mile, north and south, there are approximately eight such stations. With the exception of an apartment house, according to evidence presented by petitioners, virtually all new construction on Warwick avenue has been in line with roadside business.

In their application petitioners specify that they seek relief under secs. 14.2.3 and 6.2 of the ordinance. Section 6.2 deals with uses permitted with special conditions. Section 14.2.3 empowers the board to grant special exceptions as follows:

'* * * In appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the terms of this ordinance where the exception is reasonably necessary for the convenience and welfare of the public.'

This vests a broad grant of discretionary power in the board, but, as the court said in Richardson v. Zoning Board of Review, R.I., 221 A.2d 460 at 463-464:

'* * * The authority of the zoning board to grant this exception, however, is not free and unfettered. Evidence must be presented that certain other standards contained in § 45-24-13 are satisfied. They are that the exception is in harmony with the general purpose and intent of the ordinance and it is reasonably necessary for the public convenience. * * *'

With these standards in mind, we address ourselves to the evidence in the case at bar.

The petitioners presented three witnesses at the hearing before the board. The first witness was a representative of the Gulf Oil Corporation, which had made arrangements to purchase the property if the board granted the application. He described the plans for the proposed service station facility.

The second witness was Peter A. Laudati, Jr., a qualified real estate expert. After describing the general character of the area he testified in substance that a service station use is probably the most desirable use in a roadside business zone; that along a main local artery like Warwick avenue, gasoline service stations predominate over other commercial uses because the economic demand in such an area is greatest for service station facilities; and that where commercial zoning along such a highway abuts a residential zone, the service station use, as compared with other permitted commercial uses, is more beneficial for the adjacent residential neighborhood because it would draw the least number of strangers into the neighborhood. Additionally he stated that in his opinion the proposed use would be in harmony with the character of the neighborhood, would serve the public convenience and necessity, and would not adversely affect surrounding residential properties.

The petitioners' third witness was Roe B. Hendrick, a qualified traffic engineering consultant. He testified with respect to the vehicular traffic effects of the proposed use and stated that, from the viewpoint of traffic engineering, the proposed layout was good, beneficial and safe; that because of the type of traffic control at the intersection of Warwick and Church avenues, he did not envision that any traffic congestion would be generated by the proposed use; and that, based upon the premise that a gasoline service station draws its patronage from traffic presently using the highway, the traffic impact resulting from the granting of the application would be less than that which would result from one of the permitted commercial uses which would be expected to attract additional traffic into the area. Mr. Hendrick also testified that visibility in all directions was more than adequate.

Three neighboring property owners appeared in opposition to the application. Mr. Robert J. Watson, whose property is located on Church avenue, based his objections on the grounds that the proposed use would have '* * * a very adverse effect on the abutting property owners of which I am one'; that it would create a traffic problem; and that the area was 'saturated' with gasoline stations, there being nineteen between Sandy Lane and Narragansett Parkway, a distance of 2.5 miles. Mr. George H. Rogers, who lives across the street on Church avenue, objected on the ground that he felt the proposed use would decrease the value of his property. And the third objector, Albert Mamoorian, who said he operated a service station in the vicinity, objected for competitive reasons. He stated that there were to many on Warwick avenue and he saw no reason why there should be another in the area.

The board's decision denying the application contains the following findings: In finding No. 1 the board states that it is aware of the planned extension of Route 37 from Interstate Route 95 to Warwick avenue at a point south of Hoxsie...